U.S. v. FERGUSON

The opinion of the court was delivered by: Scheindlin, District Judge.

OPINION & ORDER

Indictment S8 97 CR 786 charged defendant Gregory Ferguson in
eight counts. Count one charged Ferguson and others with
participating in a racketeering enterprise known as Power Rules.
Ferguson was charged with participating in four predicate acts:
(1) the attempted murder of Alberto Mercado; (2) the conspiracy
to murder Gregory Ayala; (3) witness tampering; and (4)
threatening a United States Marshal. Count Two charged Ferguson
and his co-defendants with a RICO conspiracy in connection with
the activities of Power Rules. Ferguson was also charged with two
counts of violent crimes in aid of racketeering in violation of
18 U.S.C. § 1959, based on the attempted murder of Mercado and
the conspiracy to murder Ayala and two counts of possessing
weapons in connection with crimes of violence in violation of
18 U.S.C. § 924(c). Also charged was one count of witness tampering
and one count of threatening a United States Marshal.*fn1

Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay,
anything of pecuniary value from an enterprise
engaged in racketeering activity, or for the purpose
of gaining entrance to or maintaining or increasing
position in an enterprise engaged in racketeering
activity, murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in
serious bodily injury upon, or threatens to commit a
crime of violence against any individual in violation
of the laws of any State or the United States, or
attempts or conspires so to do, shall be punished . ..

18 U.S.C. § 1959(a). Here, the Government charged that Ferguson
conspired to kill Ayala for one or more of the three purposes set
forth in the statute: (1) for pecuniary gain; (2) for the purpose
of gaining entry to Power Rules; and/or (3) for the purpose of
maintaining or increasing his position in Power Rules. See
Indictment at ¶ 51. In addition, all three motives were included
in the jury charge. See Tr. at 9171-72. Specifically, the jury
was charged as follows:

As you consider Counts Three through Twenty-One, the
last element I will instruct you on is the one which
requires the Government to prove that the defendant
you are considering acted either:

(1) in consideration of the receipt of, or in
consideration of a promise or agreement to pay,
something of value from the enterprise; or (2) for
the purpose of gaining entrance to, maintaining or
increasing his position in that enterprise.

The words "in consideration of," "receipt," and "a
promise or agreement to pay [something] of pecuniary
value from [the] enterprise" should be given their
ordinary meaning, that is, the Government must prove
that the defendant believed that he would receive
something valuable from the enterprise in exchange
for committing the crime alleged.

Alternatively, to establish that the defendant
committed the crime alleged for the purpose of
"gaining entrance to or maintaining or increasing"
his position in the enterprise, the Government must
prove that the defendant's general purpose in
committing the crime in question was to gain entrance
to, to increase [sic], maintain his position in the
enterprise. Self-promotion need not have been the
defendant's only, or even his primary concern, if it
was committed as an integral aspect of membership in
the enterprise. It is not necessary that the
defendant be a formal member of the enterprise. The
motive requirement is satisfied if the defendant
committed the crime because it would allow him to
gain entrance to that enterprise, because he knew it
was expected of him by reason of his association with
the enterprise, or because it would enhance his
position or prestige within the enterprise.*fn4

Tr. at 9174-76. The jury was not asked to identify which purpose
it found had motivated Ferguson to kill Ayala.*fn5

Nor did the Government appear to rely on the "gaining entrance"
or "maintaining or increasing position" prongs during the trial,
instead concentrating on the pecuniary benefit prong. In a
lengthy closing argument and rebuttal, the Government never
summarized any "gaining entrance" or "maintaining or increasing
position" evidence or argued either of these prongs to the jury.
See Tr. at 8269 (more limited involvement of Ferguson was that
of a hired gun who became associated with Power Rules in the 1995
to 1996 time period); Tr. at 8912 (some witnesses never thought
of Ferguson as being in Power Rules).*fn7

In the 02 cab incident, both David Rivera and Rafael Lebron
(members of Power Rules) testified that Miguel Guzman (leader of
Power Rules) provided guns to David Rivera, Edwin Rivera (another
member of Power Rules), Rafael Lebron and Ferguson and directed
them to hire a gypsy cab in order to locate and shoot Gregory
Ayala. The group searched for Ayala at a number of locations but,
having no luck in finding him, returned to Miguel Guzman's
apartment building. David Rivera also testified that on another
occasion, pursuant to a plan devised by Miguel Guzman, he and
Ferguson went to Avenue St. John to find and kill Ayala. On that
occasion, David Rivera was wearing a hat with fake dreadlocks as
a Jamaican disguise. Both were carrying weapons. Regarding the
Albert Mercado shooting, Rafael Lebron testified that Miguel
Guzman told him and Ferguson to go shoot "Spanish Greggo"
[Gregory Ayala] and they agreed. In preparation for the attack,
Guzman handed out guns and bullet proof vests to Lebron and
Ferguson. Once armed, Ferguson and Lebron went with Nick Ortiz (a
member of Power Rules) in a Blazer to meet Luis Soto, who was to
point out Ayala to the trigger-men. In addition to these
missions, there was also testimony from Elizabeth Perez (Guzman's
ex-girlfriend) that Miguel Guzman spoke with Ferguson about
killing Ayala.

The Government argued that these acts proved Ferguson's close
connection with core members of Power Rules and his ongoing
efforts to further a key goal of the enterprise — the elimination
of rival drug dealer Gregory Ayala. According to the Government,
these joint efforts with Power Rules' members, coupled with
Ferguson's ongoing association with Miguel Guzman, support a
finding that his motive was to gain entry into or maintain or
increase his position within Power Rules.

e. The Rule 29 Decision

In denying Ferguson's Rule 29 motion, I held that:

[t]he government's evidence shows that Guzman
directed Ferguson and "core members" of Power Rules
to kill Ayala. Ferguson and the core members obtained
weapons, bulletproof vests, and/or disguises from
Guzman before going out to find Ayala. Ferguson only
attempted to carry out Guzman's plan to kill Ayala
when he was accompanied by the core members — never
by himself. Based on Ferguson's joint efforts with
Power Rules' members to kill one of the gang's
adversaries, at Guzman's direction, a juror could
reasonably infer that Ferguson's motive for
committing the crime was to gain membership in Power
Rules or to advance his position in the enterprise.

In certain cases, when a defendant repeatedly engages in
criminal conduct with other gang members and those actions
encompass the goals of the conspiracy, then that participation
may indeed be sufficient to prove membership. See United States
v. Mapp, 170 F.3d 328, 336 (2d Cir. 1999) (defendant was member
of robbery gang where Government offered evidence of five
robberies). Here, the record is bereft of evidence that Ferguson
engaged in any of Power Rules' core activities (drug sales,
extortion, robbery). Rather, the proof is that on two isolated
occasions, Ferguson participated with gang members in a
conspiracy to kill Gregory Ayala, a rival drug dealer. This
conduct, in the absence of any further evidence, is not
sufficient to establish membership in Power Rules. See United
States v. Polanco, 145 F.3d 536, 540 (2d Cir. 1998) (defendant
who merely sold guns to a gang and was not involved in its drug
trafficking activities was not a member of the gang — defendant's
§ 1959 conviction reversed because his involvement in the murder
of an innocent bystander with the gang's leader could not have
been committed for the purpose of maintaining or increasing his
position in the gang as he was not a member of the gang). Nor was
Ferguson involved in the planning of Power Rules' other illegal
activities. See also Thai, 29 F.3d at 818 (no evidence of
maintaining or increasing position motivation simply from the
fact that the bombing of an Asian restaurant was done by a leader
of a gang that earned money by committing violent crimes against
Asians). Cf. United States v. Muyet, 994 F. Supp. 501, 516
(S.D.N.Y. 1998) (defendant closely associated with gang who
attended gang
meetings at which murders and other violent crimes were planned
and who himself exercised discretion in committing them played
some role in the operation, management or direction of the
enterprise).

The only evidence that Ferguson's motivation in conspiring to
kill Ayala was to obtain a pecuniary benefit came from
cooperating witness Luis Soto. On direct examination, Mr. Soto
testified as follows:

Q: After she took the bag, put it in her pants and
left, what happened next?

A: We were in the hallway for a little while and
Miguel gave Dread [Ferguson] some money.

Q: How much money did Miguel give to Dread?

A: I don't know.

Q: Did they have any conversation about the money?

A: Nope.

Q: Did anyone ever discuss with you the money that
Miguel gave to Dread that day?

A: Nope.

Q: Did Dread say anything on that occasion?

A: No, he just left.

Tr. at 1291-92. Then, on cross-examination, Luis Soto testified:

Q: You're able to tie together the cookie jar
incident with the third meeting or the third time you
saw Dread, correct?

A: Correct.

Q: And you're sure that this took place after the
shooting of Albert Mercado, correct?

A: I believe so.

Q: And you specifically recall on that occasion Mr.
Guzman giving Dread some money, correct?

Even assuming Luis Soto to be a credible witness, which is a
weak assumption, and that the payment described above actually
took place, I find the evidence too slender a reed to support a
guilty verdict against Ferguson. The jury's conclusion that Power
Rules, as a RICO enterprise, agreed to and did pay Gregory
Ferguson for his agreement to murder Gregory Ayala based solely
on Miguel Guzman handing Ferguson a handful of cash is contrary
to the weight of the evidence. Soto did not know the amount of
the payment or its purpose. No evidence was offered as to any
discussions — preceding, contemporaneously, or after the payment
— as to what the money was for. Cf. Muyet, 994 F. Supp. at 519
(evidence presented was sufficient to allow a reasonable jury to
find that defendant Feliciano was promised or received payment
for his role in the Salcedo shootings — a witness testified that
he overheard John Muyet discuss the hiring of "freelancers" to
"take care of" the Salcedos and after the shootings the witness
overheard Muyet discuss the payment to Feliciano). The payment
could just as easily have been for an innocent purpose or even
for a criminal purpose unrelated to the murder of Gregory Ayala.
The payment could have been by Guzman for a personal reason or
made on behalf of Power Rules. Neither of these purposes
(innocent purpose or criminally unrelated purpose) would support
a conviction of Ferguson for violating 18 U.S.C. § 1959.

Solely from Soto's testimony, however, the jury inferred that
the payment from Guzman was made on behalf of Power Rules as
remuneration for Ferguson's promise to murder Ayala. This
inference is unsupported by any other evidence and cannot sustain
the guilty verdict. "Where there is any doubt that the evidence
fully supports a jury determination, a new trial is the
appropriate remedy to insure defendant the full extent of his
rights." United States v. Simms, 508 F. Supp. 1188, 1208
(W.D.La. 1980) (new trial granted where "the conclusion that
defendant knowingly and intentionally agreed to purchase votes
can only be reached from compound inferences based upon the
testimony of witnesses whose credibility is, in some instances,
suspect"); see also United States v. Autuori, 96 CR 161, 1998
WL 774232, at *29 (D.Conn. Aug.28, 1998) (question for judge in
granting a new trial is whether she is satisfied that competent,
satisfactory and sufficient evidence in the record supports the
jury's finding of guilt beyond a reasonable doubt); United
States v. Robinson, 71 F. Supp. 9, 12 (D.D.C. 1947) ("a judge may
set a verdict aside as contrary to the weight of evidence and
grant a new trial, even if there was substantial evidence
requiring him to submit the issues to the determination of a
jury"). In the interest of justice, I find that the jury's
verdict on Counts 10 and 35 is against the weight of the evidence
and cannot stand.*fn11 Defendant's motion for a new trial on
these counts is hereby granted.

There are other reasons that support granting Ferguson a new
trial. For example, the jury may have been unduly influenced in
its disposition of the § 1959 counts by the allegations in the
RICO and RICO conspiracy counts. In Count 1 of the Indictment,
Ferguson was charged with four predicate acts supporting his
participation in a RICO enterprise (attempted murder of Mercado,
conspiracy to murder Ayala, witness tampering and threatening a
U.S. Marshal). In Count 2, Ferguson was charged with conspiracy
in connection with the activities of Power Rules. He was,
however, acquitted of both counts. Second, "the possible
cumulative adverse affect that the various unproven charges
[e.g., the attempted murder of Alberto Mercado] may have had
upon the juror's deliberations" could have substantially
prejudiced the defendant. See United States v. Sam Goody, Inc.,
518 F. Supp. 1223, 1225 (E.D.N.Y. 1981), appeal dismissed by,
675 F.2d 17 (2d Cir. 1982), superseded by statute in, United
States v. Hundley, 858 F.2d 58 (2d Cir. 1988) (earlier ruling
that order granting a new trial was not sufficiently final to
give the Government a right to appeal superseded by Comprehensive
Crime Control Act of 1984 which now permits such appeals). In
this vein, even my decision refusing to sever Ferguson's trial
from that of the core members of Power Rules supports a new
trial. See United States v. McAllister, 91 CR 49, 1992 WL
363601 (D.Conn. Nov.12, 1992) (motion for new trial granted
because of failure to sever defendant's trial from that of
co-defendant). The jury was exposed to weeks of testimony
regarding successful murders and assaults, none of which involved
Ferguson. The chance that this parade of violence unfairly
prejudiced Ferguson's right to a fair trial is just too great to
ignore.

Conclusion

For the reasons set forth above, a new trial is ordered as to
Counts 10 and 35 of Indictment S8 97 CR 786. The scheduling of
this trial will be discussed at a conference to be held on June
1, 1998 at 3:30 p.m.

SO ORDERED:

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